Citation Nr: 1327523
Decision Date: 08/28/13 Archive Date: 09/05/13
DOCKET NO. 10-00 313 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California
THE ISSUE
Entitlement to service connection for residuals of a puncture wound to the left leg.
REPRESENTATION
Veteran represented by: California Department of Veterans Affairs
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Kristy L. Zadora, Counsel
INTRODUCTION
The Veteran had active duty service from October 1994 to August 1997.
This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2008 rating decision of the San Diego, California Regional Office (RO) of the Department of Veterans Affairs (VA) which denied the Veteran's claim for service connection for a left leg injury.
In March 2013, the Veteran testified before the undersigned at a RO (Travel Board) hearing. A hearing transcript has been associated with the claims file.
A review of the paperless, electronic (Virtual VA) claims processing system does not reveal any documents pertinent to the claim on appeal.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required.
REMAND
Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the claim can be properly adjudicated.
VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For below noted reasons, the Board finds that a VA examination is necessary in order to determine the nature and etiology of the Veteran's claimed residuals of a puncture wound to the leg.
The Veteran contends that he suffers from a disability to his left leg as a result of a puncture wound he sustained in service. Specifically, he reports being struck with a tree limb while walking through the Panamanian jungle during a field operation, and that a large thorn became imbedded in his skin. Service treatment records confirm that he sustained such a puncture wound in January 1997. Post-service treatment records indicate that he underwent exploratory surgery in January 2002 to determine whether he had retained any foreign body as a result of the puncture injury; no foreign body was found and his treating orthopedist determined that no disability was anticipated as a result of this injury. However, the Veteran has contended that he suffers from impairments to the left leg. On remand, the Veteran should be afforded a VA examination to determine whether he suffers from a disability that is the result of in-service puncture wound to the left leg.
In addition, given the time that will pass during the processing of this remand, updated VA treatment records should be associated with the claims file. The Board notes that the Veteran testified during his March 2013 hearing that he received treatment for his left leg at VA.
Accordingly, the case is REMANDED for the following action:
1. The Veteran's VA treatment records documenting treatment for his claimed left leg disorder should be obtained. Such records dated through February 2002 from the VA Medical Center in West Los Angeles are located in the Veteran's claims file. Any response received in association with this request should be memorialized in the Veteran's claims file.
All efforts to obtain these records should be documented in the claims file. If these records are unavailable, this should be documented in the claims file and the Veteran should be so informed.
2. Following the completion of the above development and the receipt of any additional records, the Veteran should be afforded a VA examination to determine the nature and etiology of his claimed left leg disorder found to be present. The examiner should review the claims folder and note such review in the examination report. The examination should include a review of the Veteran's history and current complaints as well as a comprehensive evaluation and any tests deemed necessary. Please describe any scars noted.
The examiner is asked to furnish an opinion with respect to the following questions:
(a) Based on the evidence of record, can it be determined with a reasonable degree of medical certainty, that the Veteran has developed a left leg disorder? If so, please specify the diagnosis. The examiner should identify all such disorders that have been present at any time since September 2008.
(b) Is it at least as likely as not (50 percent or greater probability) that each diagnosed left leg disorder had its onset during the Veteran's period of active duty service; or, was any such disorder caused by any incident or event that occurred during his period of service? The examiner should comment on the Veteran's documented in-service puncture wound to the left leg in January 1997.
In answering the questions posed above, the examiner is advised that the Veteran is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinion. If the Veteran's reports are discounted, the examiner should provide a rationale for doing so.
A complete rating should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board.
3. If any benefits sought on appeal remains denied, the Veteran and his representative must be furnished with an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).